0120091346_rev
05-20-2009
Richard T. Ng, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Richard T. Ng,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091346
Agency No. IRS-09-0060-F
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated December 30, 2008, dismissing his formal complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
In a formal complaint dated November 25, 2008, complainant claimed that
he was subjected to unlawful employment discrimination on the bases of
disability and in reprisal for prior protected activity when:
(1) During a civil trial conducted on or about September 16, 2008,
management colluded to impeach complainant's credibility by accusing
him of stalking his former manager; and
(2) On October 28, 2008, a co-worker told complainant "don't talk to me."
On December 30, 2008, the agency issued a final decision. Therein,
the agency dismissed the instant formal complaint for failure to state
a claim. The agency specifically noted with regard to claim (1),
that a comment made during a civil action constituted a collateral
attack on another proceeding. The agency found, moreover, that taking
into consideration the totality of events identified in both claims,
these incidents did not state a claim of harassment.
EEOC Regulation 29 C.F.R.� 1614.107 (a) (1) provides that the agency
shall dismiss an entire complaint that fails to state a claim under ��
1614.103 or 1614.106(a).
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Moreover, we find that the
claims, even if proven to be true and viewed in a light most favorable
to complainant, would not indicate that complainant has been subjected
to harassment that was sufficiently severe or pervasive to alter the
conditions of employment. See Cobb v. Department of the Treasury,
EEOC Request no. 05970077 (March 13, 1997). Furthermore, the alleged
agency actions were not of a type reasonably likely to deter complainant
or others from engaging in protected activity.
On appeal, complainant discusses extensively the civil action proceedings
referenced in claim (1) and appears to dispute the agency's assessment
that his claim constitutes a collateral attack in a separate proceeding,
claiming that the agency engaged in "factual analysis." Moreover,
complainant argues that the alleged claims do not simply address "petty
slights" but are instead justiciable claims. The Commission rejects
these arguments, and determines that the agency's identification of the
subject claims, as well as its dismissal of them, was proper for the
reasons discussed above.
Accordingly, the agency's dismissal of the instant complaint pursuant to
29 C.F.R. � 1614.107(a) (1) for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 20, 2009
__________________
Date
2
0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091346